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It is commonly believed that an expunged criminal conviction is erased and cannot be used against a person. However, an expunged drunk driving conviction may live to survive another day in Wisconsin. The state supreme court ruled last month that expunged convictions for drunk driving charges may be considered for later OWI convictions.

In 2011, the appellant in this case was convicted for injuring another person when driving while intoxicated. The Jackson County Superior Court subsequently expunged this conviction. The man was later arrested for drunk driving in 2016. Before his trial, he argued that the prosecution could not use his 2011 conviction to charge him as a repeat offender. The court denied his motion, and he was ultimately convicted. His sentence was delayed until courts ruled on his appeal.

Wisconsin law is different than most states because the first OWI is considered a civil offense, but any later charges are classified as criminal offenses. If expunction is ordered, the Clerk of Courts seals the case and destroys those court records. By contrast, a court may cancel or vacate a sentence if it was not legally authorized or there was any infringement of a person's constitutional rights.

In ruling on this case and affirming a lower appellate court, the supreme court ruled that expunction is different than vacating. Expungement only deletes evidence of an underlying conviction from court records but does not, like vacating, invalidate the conviction. Because the earlier conviction remains in effect, even though related judicial records were destroyed, the earlier conviction must be considered when determining the existence of a previous OWI conviction.

The court also said that the state Department of Transportation keeps its own separate conviction records that are not destroyed. In fact, prosecutors can use these DOT records in a later prosecution to prove that the defendant is a repeat offender.

This ruling underlies the potential long-term consequences of any OWI, even those that are expunged. A suspected drunk driver should seek immediate legal representation to mount the most effective defense against these serious charges.

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Kirk Obear, Attorney at Law
603 South 8th St
Sheboygan, WI 53081

Phone: 920-395-3004
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